Citation Nr: 9809646
Decision Date: 03/30/98 Archive Date: 04/14/98
DOCKET NO. 96-22 269 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for residuals of a left
arm injury.
2. Whether new and material evidence has been submitted to
reopen a claim for service connection for residuals of a back
injury.
3. Whether new and material evidence has been submitted to
reopen a claim for service connection for residuals of a head
injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
David T. Cherry, Associate Counsel
INTRODUCTION
The appellant had active duty for training from July 1977 to
March 1978 for which he received an honorable discharge, and
he also served from September 1979 to September 1980 for
which he received a discharge that was other than honorable.
In the April 1996 statement of the case, the only issue was
whether new and material evidence had been submitted to
reopen a claim for service connection for residuals of a left
arm injury. In his April 1996 VA Form 9, the appellant
indicated that he had three disorders - a left arm disorder,
a back disorder, and a head disorder - that were all from the
same injury, the left arm fracture in December 1979. In the
May 1997 supplemental statement of the case, there were three
issues: (1) whether new and material evidence had been
submitted to reopen a claim for service connection for
residuals of a left arm injury, (2) whether new and material
evidence has been submitted to reopen a claim for service
connection for residuals of a back injury, and (3) whether
new and material evidence has been submitted to reopen a
claim for service connection for residuals of a head injury.
Since the RO certified all three issues for appeal, the RO
tacitly accepted the appellant’s VA Form 9 as a substantive
appeal on all three issues and clarified the issues that were
perfected for appeal in the May 1997 supplemental statement
of the case.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that his three claims should be
reopened because, at the time of his injury, he was not
engaging in the conduct that eventually led to his discharge.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that evidence received since the
rating decision of July 1990 which denied the reopening of
the claim of service connection for residuals of a left arm
injury is not new and material and that the claim for service
connection for residuals of a left arm injury may not be
reopened. It is also the decision of the Board that evidence
received since the rating decision of July 1990 which denied
service connection for residuals of a back injury and
residuals of a head injury is not new and material and that
the claims for service connection for residuals of a back
injury and residuals of a head injury may not be reopened.
FINDINGS OF FACT
1. In a July 1990 rating decision, the RO concluded that new
and material evidence had not been submitted, and the
appellant’s claim of entitlement to service connection for
residuals of a left arm injury was not reopened.
2. The evidence received since the July 1990 rating decision
does not show that the character of the appellant’s discharge
for the period of active service from September 1979 to
September 1980 is not a bar to entitlement to benefits under
laws administered by VA and, thus, does not establish a
reasonable possibility that the outcome would be different.
3. Service connection for residuals of a back disorder was
denied in an unappealed rating decision in July 1990 on the
basis that there was no evidence of residuals of the back
injury from the appellant’s period of active duty for
training.
4. The evidence received since July 1990 does not show that
the appellant has residuals of the back injury from the
appellant’s period of active duty for training and, thus,
does not establish a reasonable possibility that the outcome
would be different.
5. Service connection for residuals of a head disorder was
denied in an unappealed rating decision in July 1990 on the
basis that there was no evidence that a head disorder was
incurred or aggravated during the appellant’s period of
active duty for training.
6. The evidence received since July 1990 does not show that
a head disorder was incurred or aggravated during the
appellant’s period of active duty for training and, thus,
does not establish a reasonable possibility that the outcome
would be different.
CONCLUSIONS OF LAW
1. The decision of the RO in July 1990, which denied the
reopening of the claim of entitlement to service connection
for residuals of a left arm injury and also denied the claims
of entitlement to service connection for residuals of a back
injury and residuals of a head injury, is final. 38 U.S.C.
§ 4005(c) (1988); 38 C.F.R. § 19.192 (1990).
2. Evidence received since the RO denied the reopening of
the claim of entitlement to service connection for residuals
of a left arm injury is not new and material, and the
appellant’s claim for residuals of a left arm injury may not
be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38
C.F.R. § 3.156(a) (1997).
3. Evidence received since the RO denied the claim of
entitlement to service connection for residuals of a back
injury is not new and material, and the appellant’s claim for
residuals of a back injury may not be reopened. 38 U.S.C.A.
§§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1997).
4. Evidence received since the RO denied the claim of
entitlement to service connection for residuals of a head
injury is not new and material, and the appellant’s claim for
residuals of a head injury may not be reopened. 38 U.S.C.A.
§§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be established for a disability
resulting from a personal injury suffered or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease in the line of duty.
38 U.S.C.A. § 1131 (West 1991).
If the former service member did not die in service, pension,
compensation, or dependency and indemnity compensation is not
payable unless the period of service on which the claim is
based was terminated by discharge or release under conditions
other than dishonorable. 38 U.S.C.A. § 101(2) (West 1991);
38 C.F.R. § 3.12(a) (1997). A discharge or release because
of willful and persistent misconduct is considered to have
been issued under dishonorable conditions. This includes a
discharge under other than honorable conditions, if it is
determined that it was issued because of willful and
persistent misconduct. A discharge because of a minor
offense will not, however, be considered willful and
persistent misconduct if service was otherwise honest,
faithful, and meritorious. 38 C.F.R. § 3.12(d) (1997). A
discharge or release from service for willful and persistent
misconduct is a bar to the payment of benefits unless it is
found that the person was insane at the time of committing
the offense causing such discharge or release or unless
otherwise specifically provided. 38 U.S.C.A. § 5303(b) (West
1991); 38 C.F.R. § 3.12(b) (1997).
The law grants a period of 1 year from the date of the notice
of the result of the initial determination for the filing of
a notice of disagreement; otherwise, that determination
becomes final and may not be reopened unless new and material
evidence is submitted. 38 U.S.C. § 4005(c) (1988); 38 C.F.R.
§ 19.192 (1990). New and material evidence means evidence
not previously submitted to agency decision makers which
bears directly and substantially upon the specific matter
under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a) (1997).
I. Factual Background
In an unappealed March 1981 administrative decision, the RO
noted that the appellant’s period of active service ended in
an other than honorable discharge and that he had been
discharged for being absent without leave (AWOL) for 86 days.
It was also noted that the appellant requested a discharge in
lieu of court-marital for the good of the service and that no
compelling circumstances were found in his service records
for his period of AWOL. It was also noted that there was no
evidence to show that the appellant was insane at the time of
his offenses. The RO concluded that the discharge for the
period of service from September 1979 to September 1980 was
considered to have been issued under dishonorable conditions
for VA purposes and that it was a bar to VA benefits.
Therefore, the appellant’s claim for service connection for
residuals of a left arm injury was denied. The evidence of
record included service medical records and service personnel
records. Service medical records revealed that the appellant
fractured his left arm in December 1979, and they did not
contain any evidence of complaints or treatment of a
psychiatric disorder. Service personnel records confirmed
that the appellant had requested a discharge for the good of
the service. Those records also revealed that the appellant
had been give a mental status evaluation in July 1980 and
that he had been psychiatrically cleared for any
administrative action deemed appropriate.
In a July 1990 rating decision, the RO denied the reopening
of the claim of entitlement to service connection for
residuals of a left arm injury on the basis that the injury
occurred during a period of dishonorable service. The RO
also denied service connection for residuals of a back
disorder on the basis that there was no evidence of residuals
of the back injury from the appellant’s period of active duty
for training. Moreover, the RO denied service connection for
residuals of a head injury on the basis that there was no
evidence that a head disorder was incurred or aggravated
during the appellant’s period of active duty for training.
Evidence of record included service medical records which
revealed that, in September 1977, the appellant had a strain
in his back. On January 1978 physical examination, the spine
was normal. It was also noted that the appellant had a head
injury three years ago and that there were no known sequelae.
There were no complaints or treatment of a head disorder.
The evidence that will be taken into account in determining
whether there is a basis for reopening any of the claims is
the evidence added to the record since July 1990 because that
was when the claim was last finally disallowed. Evans v.
Brown, 9 Vet. App. 273 (1996). The evidence received since
July 1990 includes the following: service personnel records,
private treatment records from July 1983 to July 1994, VA
treatment records from November 1994 to April 1996, the
appellant’s notice of disagreement that was received in March
1996, the appellant’s VA Form 9 that was received in April
1996, and a November 1996 statement from the National
Personnel Records Center (NPRC).
Service personnel records noted that, in August 1980, the
request for discharge for the good of the service was
approved and that an other than honorable conditions
discharge certificate was issued. Private medical records
and VA treatment records revealed that the appellant had been
treated for, inter alia, a psychiatric disorder. VA
treatment records also revealed that a November 1994
examination of the appellant’s head after an injury was
normal and that, in December 1994, degenerative joint disease
was diagnosed when the appellant complained about pain in his
left forearm during cold weather. In March 1995, x-rays of
the appellant’s head revealed no acute trauma. Also, in
March 1995, the appellant had a strain of the left forearm.
In his March 1996 notice of disagreement, the appellant
asserted that he was in good standing at the time of his left
arm injury and that he should not be judged based on his
conduct after that injury. In his April 1996 VA Form 9, the
appellant argued that he also injured his back and head at
the time of his left arm fracture. In a November 1996
statement, NPRC noted that there was no record on file that
the other than honorable discharge was ever upgraded.
For the purposes of determining whether new and material
evidence has been submitted, credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992). In Evans, the United
States Court of Veterans Appeals (Court) stated that new and
material evidence is evidence that meets the following
requirements: (1) the evidence is not of record at the time
of the last final disallowance of the claim and not merely
cumulative of other evidence that was then of record; (2) the
evidence is probative of the issue at hand; and (3) the new
and probative evidence, in light of all of the evidence of
record, raises a reasonable possibility that the outcome of
the claim on the merits would be changed. As to the
determination of the materiality of the evidence presented
since the last final disallowance of the claim, the newly
presented evidence does not need to be probative of all of
the elements that are required to award a claim, but instead
needs to be probative only as to each element that was a
specified basis for the last disallowance.
II. Whether New and Material Evidence has been Submitted to
Reopen a Claim for Service Connection for Residuals of a Left
Arm Injury
To reopen the claim for service connection for residuals of a
left arm injury, the appellant needs to present evidence that
the character of the appellant’s discharge from service is
not a bar to entitlement to benefits under laws administered
by VA.
The medical records are new, but not material. These records
do not show that the appellant was insane at the time of
committing the offense which caused his discharge and are not
otherwise related to the character of his discharge.
The service personnel records are cumulative evidence because
most of those documents were reviewed by the RO at the time
of the March 1981 administrative decision and the only
document that was not of record at that time is an August
1980 document which merely notes that an other than honorable
conditions discharge from service for the appellant was
approved.
The document from the NPRC is new, but not material. It
notes that the appellant’s discharge has never been upgraded,
and, thus, it does not show that the character of the
appellant’s discharge from service is not a bar to
entitlement to benefits under laws administered by VA.
With regard to the appellant’s contention about the
unfairness of being precluded from receiving compensation for
an injury which occurred prior to committing the offense that
led to his discharge, that statement is new, but not
material. A discharge or release from a period of service
for willful and persistent misconduct is a bar to the payment
of benefits with regard to any disability during that period
of service unless it is found that the person was insane at
the time of committing the offense causing such discharge or
release. See 38 U.S.C.A. § 5303(b) (West 1991); 38 C.F.R. §
3.12(b) (1997). Therefore, the appellant’s conduct during
that period of service prior to committing the offense that
caused his discharge is irrelevant.
In short, new and material evidence with regard to the claim
of entitlement to service connection for residuals of a left
arm injury has not been presented, and that claim may not be
reopened.
III. Whether New and Material Evidence has been Submitted to
Reopen a Claim for Service Connection for Residuals of a Back
Injury
To reopen the claim for service connection for residuals of a
back injury, the appellant needs to present evidence that he
has residuals of the back injury from his period of active
duty for training.
The medical records are new, but not material. These records
do not show that the appellant has residuals of the back
injury from his period of active duty for training.
With regard to the appellant’s assertion that he also injured
his back when he fractured his left arm, that contention is
new, but not material. Even if the appellant has a back
disorder from that injury, he is precluded from receiving VA
benefits for that disorder because it would have occurred
during a period of service that he is ineligible to receive
VA benefits due to the character of the appellant’s discharge
from service.
In sum, new and material evidence with regard to the claim of
entitlement to service connection for residuals of a back
injury has not been presented, and that claim may not be
reopened.
IV. Whether New and Material Evidence has been Submitted to
Reopen a Claim for Service Connection for Residuals of a Head
Injury
To reopen the claim for service connection for residuals of a
head injury, the appellant needs to present evidence that a
head disorder was incurred or aggravated during his period of
active duty for training.
The medical records are new, but not material. These records
do not show that the appellant had a head disorder which was
incurred or aggravated during his period of active duty for
training.
With regard to the appellant’s assertion that he also injured
his head when he fractured his left arm, that contention is
new, but not material. Even if the appellant has a head
disorder from that injury, he is precluded from receiving VA
benefits for that disorder because it would have occurred
during a period of service that he is ineligible to receive
VA benefits due to the character of the appellant’s discharge
from service.
ORDER
The appeal to reopen a claim of service connection for
residuals of a left arm injury, a back injury, and a head
injury is denied.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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